Family Provision Claims by Children (NT)
A family provision claim is a claim by a close family member of a deceased person who feels that they have not been adequately provided for. Children are always eligible persons to make family provision claims in the NT as are current spouses and partners. However, a claim can only be made if the provision under the deceased person’s will meets the minimum criteria for provision to be made. This article deals with family provision claims by children in the NT.
Eligibility criteria and family provisions claims
Under Section 7 of the Family Provision Act 1970, the child of a deceased person can make an application to the court for further provision from the deceased person’s estate. A child includes a natural-born child, a child adopted into the family and a child born out of wedlock. The question in such a claim is often not whether provision should be made for the child, but whether the amount of provision made is sufficient to provide for that child’s needs.
Foster children, children who have been adopted out of the family and persons who were not children of the deceased but were treated as children by the deceased (often called Moses in the bullrushes) are not eligible applicants for family provision in the NT.
Provision for step-children from a deceased estate in the NT is a more technical issue and is dealt with in a separate article.
Two-stage test for family provision claims
Family provision cases in the northern territory are decided based on a two-stage test.
Firstly, the court must consider whether the deceased had a moral obligation to provide for the proper maintenance, education and advancement in life of the applicant child.
Second, it must consider what is the amount of provision for the applicant child that is sufficient to provide for the applicant child’s proper maintenance, education and advancement in life (in all the circumstances of the case) and if the deceased’s will or intestacy meets that obligation.
An applicant child will, save for in cases of extreme disentitling conduct, meet the moral obligation test. It is unusual for an applicant child to have such a relationship that the moral obligation is contested. Most cases involving applicant children consider the amount of provision that is appropriate for the applicant child.
Children’s family provision claims can generally be broken down into three separate categories, which are:
- Children under the age of 18 years;
- Children with disability;
- Other adult children.
Children under 18
Children who are under 18 will generally have a very easy claim to family provision from an estate. Courts are hesitant to make submissions that any adverse findings about conduct by a minor child.
The court is likely to protect the interests of the minor children, particularly those who are under 14.
The question in cases with minor children is often what level of provision is necessary for their needs and whether that amount has been received.
Child with disability
Children who have a disability also frequently have a very easy claim for family provision. However, the court will often take into account what other resources the child has available to them and what the level of their actual financial need is.
The introduction of the NDIS means that disabled children often have a significant portion of their needs met by NDIS funding, which is taken into account when deciding the amount of provision to be awarded to the disabled child.
Many contested family provision claims by children involve adult children who do not have disability. Adult children often may not have sufficient need for provision, if they have their own financial resources that they have gathered through their own endeavours, whether they have purchased a house (and whether the house is encumbered by mortgage) and if they have accumulated superannuation.
Further, the conduct and relationship of the adult child towards the deceased person is usually analysed to consider why they have been left without further and better provision from the estate and to determine the amount of provision that is appropriate for them.
The greater the provision given under a will to an adult child, the less likely it is that their family provision claim will succeed. In some cases, an adult child receives no provision whatsoever, particularly if they are competing against a long-term spouse.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.